Citation Nr: 1502967
Decision Date: 01/21/15 Archive Date: 01/27/15
DOCKET NO. 94-25 188 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUE
Entitlement to service connection for a psychiatric disability, other than posttraumatic stress disorder.
REPRESENTATION
The Veteran is represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Sean G. Pflugner, Counsel
INTRODUCTION
The Veteran served on active duty from June 1983 to August 1983 and from January 1986 to May 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This appeal was certified to the Board by the RO in Milwaukee, Wisconsin.
REMAND
In the June 2014 remand, the Board directed the RO to attempt to obtain evidence that was identified by the Veteran, but had not been associated with the claims file. Specifically, the Veteran stated that he was receiving ongoing psychiatric treatment from private healthcare providers, to include instances of treatment dated in and after February 2013.
In June 2014, the RO sent the Veteran a letter requesting that he submit this identified evidence and/or complete and return an enclosed Authorization and Consent to Release Information form in order to enable the RO to attempt to obtain the evidence from the private healthcare providers directly. After not receiving a response from the Veteran, the RO then obtained a supplemental opinion from the December 2012 VA examiner. In the resulting report, the examiner noted that private treatment reports dated in and after February 2013, were not available for review. Subsequently, the RO re-adjudicated the Veteran's claim, confirming and continuing the denial thereof. The RO issued an August 2014 supplemental statement of the case before returning the Veteran's claim to the Board for further appellate review.
In November 2014, the Veteran independently obtained and submitted additional private treatment records, including those dated in and after February 2013. The Veteran submitted these records without a waiver of initial consideration by the RO. 38 C.F.R. § 20.1304 (2014). These records demonstrate ongoing complaints of, diagnoses, and treatment for psychiatric disabilities and, thus, they are pertinent. Consequently, the Board finds that a remand is warranted in order for the RO to consider in the first instance all of evidence submitted since the August 2014 supplemental statement of the case.
Additionally, given that the private treatment records dated in and after February 2013 have now been associated with the claims file, the Board finds that a remand is also warranted in order to provide the December 2012 VA examiner with the opportunity to review them and render a supplemental opinion. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete factual premise are not probative).
Accordingly, the case is remanded for the following action:
1. The RO must make contact the December 2012 VA examiner, who also rendered the July 2013 and August 2014 supplemental opinions, or, if unavailable, an appropriate substitute, in order to obtain another supplemental opinion. Following review of the claims file and all electronic records, to specifically include those dated in and after February 2013, the examiner must provide an opinion with respect to the following questions:
a) If a diagnosis of personality disorder is still warranted, did the Veteran experience a superimposed disability thereon during either period of his active duty?
b) Is a diagnosis of a psychiatric disability other than a personality disorder warranted at any time during the entire pendency of this appeal, dating back to April 1993? In addressing this question, the examiner must consider all of the evidence of record, including the evidence dating prior to April 1993.
c) If the answer to b) is in the affirmative, what is the nature of that disability? Further, was any such disability incurred in, due to, or otherwise etiologically related to either period of the Veteran's active duty? Did any such disability pre-exist either period of the Veteran's active duty? If so, upon what evidence is this opinion based upon. Additionally, if it is found that the disorder pre-existed either period of active duty, was it aggravated beyond its natural course during his active duty?
The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.
2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be re-adjudicated. If the benefit on appeal remains denied, a new supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review.
No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).